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2016 (5) TMI 571 - ITAT CHENNAI

2016 (5) TMI 571 - ITAT CHENNAI - TMI - Reopening of assessment - receipt of on-money - Held that:- When no evidence is available for receipt of on-money during assessment year 2008-09, extending the analogy to other assessment years for re-assessment proceedings may not be justified. As rightly found by the CIT(Appeals), there is no base for the reasons to believe that the income otherwise chargeable to tax has escaped assessment. In the absence of any material to suggest that the income charge .....

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ning the assessments. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. - Decided in favour of assessee. - ITA Nos. 2154, 2155 & 2156/Mds/2015, C.O. Nos.10, 11 & 12/Mds/2016 - Dated:- 5-5-2016 - Shri N. R. S. Ganesan, Judicial Member And Shri A. Mohan Alankamony, Accountant Member For the Appellant : Sh. P. Radhakrishnan, JCIT For the Respondent : Shri T. Vasudevan, Advocate ORDER Per N. R. S. Ganesan, Judicial Member A .....

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the case of Shri A.S. Aadhinarayanan on 29.01.2009. Several incriminating materials were found at the residence of Shri A.S. Aadhinarayanan. A simultaneous search was also conducted in the premises of the assessee on 29.01.2009. Assessment was framed on the basis of material found during the course of search operation in the case of Shri A.S. Aadhinarayanan and in the case of the assessee under Section 153C of the Income-tax Act, 1961 (in short 'the Act'). The assessment made in the hand .....

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g that there cannot be any addition on the basis of so-called brochure, which was said to be found in the premises of Shri A.S. Aadhinarayanan, since the same cannot be construed as incriminating material. The Assessing Officer after the order of the Tribunal, sought to reopen the assessment for the assessment year 2008-09. According to the Ld. D.R., the CIT(Appeals) found that the material available on record is only a brochure which was said to be found at the residence of Shri A.S. Aadhinaray .....

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ney of ₹ 26,00,000/- from the buyers for the assessment year 2008-09. By extending the same analogy for the assessment years 2008-09 and 2009-10, the Assessing Officer made addition in the reassessment proceedings. According to the Ld. D.R., since the material was found during the course of search operation, with regard to receipt of on-money, the Assessing Officer has rightly reopened the assessment. The receipt of onmoney was not the subject matter of examination in the regular assessmen .....

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Assessing Officer, during the examination under Section 132(4) of the Act, found that the assessee has received on-money on sale of plot which was supported by the brochure found at the residence of Shri A.S. Aadhinarayanan. Therefore, according to the Ld. D.R., this material is very much available during the course of search operation. Since the income chargeable to tax escaped assessment, the notice under Section 148 of the Act was issued within four years from the end of the relevant assessm .....

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. Aadhinarayanan. There is no other corroborative evidence available on record to suggest that the assessee has received onmoney. According to the Ld. counsel, it is for the Assessing Officer to prove that the assessee has received on-money over and above the amount disclosed in the sale deed. Moreover, the assessee was not given any opportunity to cross-examine the so-called purchasers who said to have paid the on-money. The CIT(Appeals), after examining the relevant facts, found that there is .....

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ting the assessment. Therefore, according to the Ld. counsel, the issue of notice under Section 148 of the Act is not justified. The brochure seized at the premises of Shri A.S. Aadhinarayanan relates to only one purchaser, therefore, according to the Ld. counsel, extending the same to all the lands sold by the assessee would tantamount to change of opinion. Therefore, according to the Ld. counsel, reopening of assessments is bad in law. The Ld.counsel further pointed out that the Assessing Offi .....

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f the Act at the residential premises of Shri A.S. Aadhinarayanan, the Assessing Officer completed the assessment in the case of the assessee under Section 153C of the Act. On the basis of the brochure found during the course of search operation, block assessment made under Section 153C of the Act, was challenged before the CIT(Appeals) who set aside the addition made by the Assessing Officer on the ground that the so-called brochure cannot be construed as incriminating material for the assessme .....

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Section 147 would be applicable only in case the assessment was completed under Section 143(3) of the Act. The prohibition contained in the proviso to Section 147 of the Act is for reopening assessment after expiry of four years from the end of relevant assessment year. In the case before us, assessments for all the three assessment years were reopened within a period of four years. Therefore, this Tribunal is of the considered opinion that the proviso to Section 147 of the Act may not stand in .....

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at there is no foundation for reopening assessment for the assessment years under consideration. 6. We have carefully gone through the Sections 147 and 148 of the Act. Section 147 clearly says that if the Assessing Officer has reason to believe that any income chargeable to tax escaped assessment for any of the assessment year, subject to provisions of Sections 147 and 148 of the Act, can assess or re-assess such income which escaped assessment. In this case, there is some evidence to indicate t .....

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